News, views and opinions from the one kiwi expat sent to New York University on a Fulbright Scholarship to study his masters of law.

Saturday, October 29, 2005

Thou Shalt Speaketh!

"We hold these truths to be self-evident that allmen straights are created equal" The Declaration of Independence of the Thirteen Colonies 1776

People speak freely over here in the United States. Free and long and loud.

I heard it for myself a week ago during a protest here at NYU. A group of progressive students were protesting military recruitment on campus because of the military's ban on enlisting gay and lesbian soldiers. Or more specifically, we were protesting the Federal government's policy of withholding funding from NYU, who because it opposes the military's ban, wishes to stop the military from recruiting on campus. The effect of the policy is to force NYU to admit the military recruiters in spite of its principled ban on the military's discriminatory practice.

But this is America, so there isn't just protests and political opposition, there is also litigation underway. A consortium of universities are claiming the government's policy breaches the universities' freedom of speech by effectively preventing them from voicing their opposition to the military's discriminatory practices. The case goes before the Supreme Court this December.

The freedom of speak one's mind in America is enshrined in the Constitution, and as I've recently learned in my Constitutional Law class, vigorously protected by the American Supreme Court. What the the First Amendment of the Constitution actually says is: "Congress shall make no law abridging the freedom of speech, or of the press". While this sounds absolute, we've just finished four weeks learning what limits Congress can legitimately put on freedom of speech. The short answer is "very little".

Nazi's have a constitutional right to march through a predominately Jewish neighbourhood in which a large number of holocaust survivors live. The media is constitutionally protected from defamation suits if they publish patently false information, unless the particular media outlet knew or ought to have known the facts were false. Laws prohibiting hate speech, simulated child pornography and political campaign expenditure limits are constitutionally invalid. Even advertisers have constitutional rights to "commercial speech".

In essence, and with only some very slight exceptions, Congress can pass no law preventing people from expressing their point-of-view, no matter how obnoxious, offensive and at times misleading.

There can be no doubt, however, that America's robust doctrine of free speech gave voice to those who otherwise struggled to be heard in the face of grave injustice.

When the worst excesses of Southern racism were resulting in the suppression of those seeking basic civil rights for African Americans, the Supreme Court cleared the way for those brave activists to speak. It enabled them to show America what a corrupting influence its racism had become, even though the white majority really didn't want to hear. Without the robust free speech protection afforded by the Court, the majority, blinded by prejudice and fear, would have continued to suppress those voices screaming injustice.

In earlier times, valuing people's right to hold unpopular opinions led to the invalidation of 20 year prison sentences for those who conscientiously objected to World War 1. Ultimately, it stopped the post-WW2 communist witch-hunts, the side-affect of which had been to frighten people away from expressing, or even holding, political opinions of the left.

Maybe this justifies America's doctrine of free speech, in spite of its less palatable excesses. But I am left with some residual discomfort.

There is an argument that says if you give judges the power to make decisions about what people can and cannot say, for instance, then it removes the issue from the arena of normal political debate. Instead of politicians acting responsibly to find solutions that reconcile the interests of all their constituents, they can impose populist solutions that appeal to the majority, knowing that in the end, judges will strike the right balance. In other words, politicians can pander to the majority, whose votes they need at the next election, at the expense of the minority. When the courts then re-strike the balance in favour of minority interests, the politicians can hide behind the court's judgment, saying the resulting state of affairs is not their fault, but that of a cabal of liberal judges.

This reduces politics to a commercial pass-time, in which politicians produce their wares for the largest, most lucrative market, and voters make their choices based solely on individual preferences. Any notion of the "collective good" drops out of the political rubric because it is the responsibility of actors (judges) outside the political process.

My discomfort lies in the fact that I find this kind of politics wholly undesirable. I want politicians to take responsibility; I want them to fully consider the implications of their actions when they look their minority constituents in the eye. I don't want them able to look away with their fingers crossed, knowing that in the end judges will do the right thing.

Similarly, I want voters to cast their ballots knowing they are making the decision, not a group of unelected judges.

To ground this in reality for a moment, I want Wayne Mapp and all National Party MPs to take full responsibility for eradicating every trace of non-majoritarian viewpoint from government. And I want anyone voting for Mr Mapp and his kin to know their votes will directly affect their family, friends and colleagues who don't fit within Mr Mapp's conception of the majority. (For those unfamiliar with this reference to current Kiwi politics, check out LAWS 179: Elephants and the law for a good run-down of the issue.)

Of course it's naive to suggest this will happen all the time, and so any democracy requires checks on the ability of the majority, through their representatives, to run amok. I'm just not yet convinced giving judges the final decision is the way to do it.

Whatever the answer to this quandary, the near absolute freedom of speech is undoubtedly here to stay in the US of A.

Just to finish, it's worth noting that my other experience of this tradition has been inside the classroom. American students are not only impressively able, but also admirably willing, to speak-up in class. They know what their opinion is, and they are sure we all have to hear it.

I, like many of the foreign students, am more reticent about pushing my views forward. This is partly the result of my liberal tendencies, which prevent me from taking my own side in an argument. I think I believe one thing, but the other side has good points, too...

But there is something to learn from the Americans in this regard. You have to speak to be heard. If you're speaking rubbish, someone will tell you, and it'll stop you speaking rubbish in the future. If you're speaking sense, America's tradition of free speech shows that you could end-up changing the World.

12 Comments:

Please remember one thing. Just because someone may think you are speaking rubbish doesn't mean that you are. That is their opinion and they are welcome to it, but you also have the right to your opinion no matter what it is.

That's true, grandpa eddie. Of course another principle behind a robust free speech tradition is that to really feel your opinions are right, you have to defend them against the contrary. In other words, have them exposed to criticism; if they withstand it, then you know you're on solid ground.

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